How a Trump Judge Exposed the Trump Con

 

Opinion

David French

How a Trump Judge Exposed the Trump Con

 

Oct. 12, 2025

https://www.nytimes.com/2025/10/12/opinion/trump-judge-immergut-portland-national-guard.html

David French

By David French

Opinion Columnist

 

Earlier this month, a federal judge appointed by President Trump in 2019, did the worst thing you can do to Trump in a court of law: She took him seriously. She read his words, found them disconnected from reality and acted accordingly.

 

For a very long time, Trump and his supporters have gotten away with a double game. First, they’ll cheer anything and everything that makes him a thoroughly unconventional president — from his bizarre social media posts to his extreme use of executive power — as necessary, absolutely necessary, to save the country and drain the swamp.

 

But when Trump’s unprecedented behavior meets with an unprecedented response, MAGA is aggrieved. How dare you treat him differently from other presidents, they say. The most obvious example is the sense of grievance around the former special counsel Jack Smith’s indictment of Trump for his role in trying to steal the 2020 election.

 

Trump orchestrated a fraudulent campaign to change the outcome of an election. Instead of admitting that extraordinary actions can lead to extraordinary reactions, MAGA was furious that Trump was the first former president to face a federal indictment.

 

Time and again, the pattern repeats. When Trump is on offense, he’s celebrated as a president like no other. But when he has to answer for his actions in court, he demands that he be treated as a president like any other.

 

Trump’s National Guard deployments represent another example. He’s posting wildly false statements about American cities online, and then he’s directing that soldiers be sent to cities governed by officials he sees as his political enemies, even though none of the historic circumstances that have justified military deployments in the past — like widespread unrest — are present.

 

The level of violence in Portland is a far cry from the multiple urban riots of the 1960s or the Los Angeles riots of 1992 — much less the riots that spread across American cities after George Floyd’s murder in 2020.

 

But when Trump faces lawsuits, he defends his deployments by leaning on the deference earned by other presidents through their responsible use of power. Because other presidents were deemed trustworthy, his representatives argue, the courts should trust Trump, too.

 

In Portland, Ore., however, a Trump appointee said no. She refused to play Trump’s game and instead held him accountable for his words. There is no deference due to a president who refuses to operate in good faith.

 

On Oct. 4 Judge Karin Immergut of the U.S. District Court for the District of Oregon issued a temporary restraining order blocking Trump’s federalization and deployment of the Oregon National Guard to Portland. The opinion is a model of judicial clarity. Other federal courts should read it and absorb her reasoning.

 

To justify his deployment, Trump invoked a statute that allows him to call the National Guard to federal service in the event of an invasion, a “rebellion or danger of a rebellion” against the United States, or when he is “unable with the regular forces to execute the laws of the United States.”

 

According to binding precedent, a Ninth Circuit case called Newsom v. Trump, Judge Immergut is supposed to give the president “a great level of deference” in defining when those conditions exist. But how much deference should you give a president who constantly lies?

 

The right answer is that a president can forfeit judicial deference through his own conduct. In Newsom v. Trump, the Ninth Circuit also said that the president’s determinations must be made in “good faith.” If there’s no good faith, there should be no deference.

 

As the judge observed, at a moment of “minimal activity” outside the Portland ICE facility, Trump was calling Portland “War ravaged” and saying federal facilities were “under siege.”

 

If those statements had been true, a military deployment would be appropriate. But they’re not true, and the judge is under no obligation to pretend that they are. “The president’s determination,” she wrote, “was simply untethered to the facts.”

 

The Trump administration has appealed Immergut’s order, but even if the Ninth Circuit reverses her ruling, other federal courts, including the Supreme Court, should pay close attention to her analysis. In fact, we should all read her words. She sees the Trump administration clearly.

 

The president keeps making wild statements, and his lawyers keep trying to defend them with careful arguments. Time and again, the message is the same — pay no attention to the man behind the curtain.

 

For example, in a public message on Truth Social that was reportedly meant to be private, Trump told Attorney General Pam Bondi that three of his political opponents, James Comey, Letitia James and Adam Schiff, were “guilty as hell” and urged her to prosecute, saying “We can’t delay any longer, it’s killing our reputation and credibility.”

 

In the weeks that followed, Lindsey Halligan, the interim U.S. attorney in the Eastern District of Virginia, has indicted both Comey and James. Should a court consider Trump’s statements relevant to the charges, or should judges evaluate only the indictments?

 

In other words, do courts have to pretend that there’s anything normal about these criminal charges?

 

The examples keep coming. In September, a three-judge panel at the Court of Appeals for the Fifth Circuit in New Orleans ruled 2-1 that the president did not have the authority to invoke the Alien Enemies Act to remove suspected members of Tren de Aragua, a transnational gang, from the United States.

 

The majority opinion, written by Judge Leslie Southwick, a George W. Bush appointee, took pains to note exactly how unusual the president’s actions were. The Alien Enemies Act had been invoked only three times before in American history. Each of these times — during the War of 1812, World War I and World War II — the country was in a declared war against a global superpower.

 

Now Trump was using that same authority against a criminal organization, not a sovereign nation — and without any declaration of war.

 

In his dissent, Judge Andrew Oldham began with these key sentences: “For 227 years, every president of every political party has enjoyed the same broad powers to repel threats to our nation under the Alien Enemies Act. And from the dawn of our nation until President Trump took office a second time, courts have never second-guessed the president’s invocation of that act.”

 

All of that is certainly true. But wouldn’t it be equally true to say that for 227 years no president of any political party has invoked the Alien Enemies Act in the absence of a declared war? The court did not create that unusual condition; Trump did.

 

Presidents have enjoyed a degree of judicial deference in part because they have earned it. Generations of good faith and fair dealing with federal courts have even created a doctrine called the “presumption of regularity,” where courts presume that official duties have been properly discharged — unless there is “clear evidence to the contrary.”

 

There is now “clear evidence” — in the form of Trump’s own words — that there is nothing regular about this administration.

 

Judge Immergut understands this reality clearly. She understands that there are traditions that predate court precedent, that predate any deference to the executive. “This country,” she wrote, “has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs.”

 

“This is a nation,” she continued, “of constitutional law, not martial law.”

 

That’s correct. The best way to evaluate the reasoning behind Trump’s actions is to examine Trump’s words, and Trump’s words reveal a man who isn’t just “untethered to the facts”; he’s also untethered to the law.

 

Dishonest presidents should be entitled to no deference at all.

 

David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation.” You can follow him on Threads (@davidfrenchjag).